K.P.Y. Siddhique vs Amina

Thomas, J.—Respondent is the fourth wife of the appellant and all the other three are alive. Appellant has grown up sons in his earlier marriages, some of whom are even older than the respondent. The matrimonial life of the appellant was short-lived -- less than an year -- and now the respondent has decided to seek for dissolution of her marriage with him on the ground of his cruelty. Family Court, before which she applied for the relief, granted the decree for dissolution despite resistance from the appellant. This appeal is in challenge of the said decree.

Appellant''s marriage with the respondent was on 16-10-1988. The parties are Muslims. Respondent became pregnant twice during the wedlock, but both were aborted. It was on 27-8-1989 that they lived together last and she was taken back to her natal home by her uncle when she complained of physical assaults inflicted by her husband. A criminal case was launched against the appellant on that allegation and later proceedings for maintenance allowance u/s 125 of the Code of Criminal Procedure were initiated.

The present case for decree of dissolution of marriage was filed u/s 2(viii) of the Dissolution of Muslim Marriages Act, 1939 (for short ''the Act'').

Respondent alleged that appellant was not in favour of her becoming a mother and when she became pregnant, the appellant administered some drug to her to have miscarriage. According to her, she was told by the appellant that he had married her only for keeping her at home to do domestic work and also to share his bed and that she was not treated as his wife. The last allegation against the appellant is that he had subjected her to physical torture on 27-8-1989 when she complained to him that one of his grown up sons misbehaved towards her. She elaborated it that the appellant strangulated her and then confined her in a locked up room until she was rescued by her uncle.

4-A. Appellant and respondent were examined as PW 1 and RW 1 respectively and none else was examined. The Family Court placed reliance on PW-1''s testimony and found that appellant had treated her with cruelty. Hence the decree for dissolution of marriage was granted to the respondent.

The allegation pertaining to cruelty in this case consists of two different facets. First is that appellant disfavoured respondent becoming a mother. On two occasions when she became pregnant he managed to cause miscarriage through deceitful means, according to her. The second facet of the allegation of cruelty is that on 27-8-1989 she was subjected to physical assualt.

On the first aspect, appellant himself admitted that respondent became pregnant on two occasions and on both occasions the pregnancy was aborted. But he put forward a case that both miscarriages happened due to some gynaecological problems. The Family Court Judge on this aspect has chosen to believe her version as the learned Judge was of the view that appellant should have proved that the medicine administered by him was for the foetal growth and not for expulsion of the embryo. We think that the approach made by the Family Court in this regard is legally sound and is justified on the facts of this case.

About the second limb of the allegation, the Family Court took into consideration the fact that respondent lodged a complaint with the police soon after she left her nuptial home which after investigation the police charge-sheeted against the appellant, The mere fact that the criminal case ended in his acquittal is not enough to throw her allegation overboard. It could be noticed from Ext. B2 (judgment of the criminal Court) that the Magistrate was not inclined to convict the appellant due to want of independent evidence to corroborate her testimony. It is axiomatic that the standard of proof required for conviction of the accused in criminal cases is much more rigorous that the proof required in civil cases. Acquittal of accused in criminal cases is often made on benefit of doubt. But such standard is not expected to be adopted by Civil Court Judged from the standard required in civil cases, we are inclined to believe the version of the respondent that she was subjected to physical torture. We bear in mind that a doctor had examined her after the police case was registered. The said doctor noted some abrasions on her neck, and right knee and tenderness on her back. This fact could be discerned from Ext. B2judgment itself. This lends credence to her version that she was physically assaulted by her husband on the said day.

Learned counsel for the appellant made a bid to convince us that what happened on 27-8-1989 was only a stray incident which is not enough to conclude that appellant was treating his wife with cruelty. According to the counsel, the finding of cruelty can be reached only if the wife was regularly assaulted be her husband and in support of the said contention, learned counsel invited our attention to the decision of a Division Bench of this Court in Kunhamnya v. Khadija, ILR (1973) Ker 491). In that case, a wife was beaten on the cheek with chappals. It was found to be a stray incident and their Lordships held that such a stray incident was not sufficient to amount to habitual assault or cruelty of conduct within the meaning of Section 2(viii) of the Act. Counsel proceeded to argue that since the case on hand is no worse for the respondent, the ground of cruelty is not available to her.

Section 2 of the Act deals with the right of a woman married under Muslim Law to obtain a decree for dissolution of her marriage on one of the grounds enumerated therein. Section 2(viii) reads thus :

"A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely.... that the husband treats her with cruelly, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment."

9-A. It is evident from the above clause that habitual assault is not the only premise on which cruelty can be established. In Kunhammu''s case (ILR (1973) Ker 491) (cited supra) the Division Bench did not advert to the second limb of Clause (a). If any incident perpetrated by the husband with cruelty had made her connubial life miserable then that also would amount to cruel treatment by the husband as envisaged in the clause.

This is a case where the respondent has succeeded in proving that her life with the appellant was miserable and his cruel conduct towards her was mainly responsible for it. According to us it was cruelty to force a young woman, who was desirous of becoming a mother, to abort her pregnancy, since it was not necessitated to save her own life. Between the two-version the one put forward by the wife that some drug was administered to her and miscarriages occurred consequently and the other put forward by the appellant that drug was administered for the foetal protection -- the Family Court has preferred to believe the former. We concur with the said approach. .

We find no scope to interfere with the decree of divorce passed by the Family Court. Appeal is, accordingly, dismissed in limine.